VISHNU Vs. SUBHASH CHAND

JUDGEMENT

(1.) The present revision petition has been filed challenging order dated 23.11.2005 vide which an application under Order VI Rule 17 CPC for amendment of the plaint filed by the plaintiff was allowed. Brief facts of the case are that an agreement to sell was executed by the petitioner with the respondents on 15.9.2003. The sale deed had to be executed or registered on or before 14.9.2005. In the meanwhile, however, the petitioner tried to sell the suit property to a third party. Accordingly, the plaintiff, respondent No. 1 in this revision petition, filed the present suit for permanent injunction restraining the petitioner, who was impleaded as defendant No. 1 therein, from alienating the suit property. During the pendency of the suit, the date for execution of the sale deed i.e. 14.9.2005 matured. When sale deed was not executed, the plaintiff moved an application for amendment of the plaint so as to plead this fact in the suit. It is this amendment which has been allowed by the trial Court.

(2.) Learned Counsel for the petitioner has submitted that by granting this amendment, nature of the suit itself has been changed. He states that no such change should have been allowed. He relies upon a judgment of the Hon'ble Supreme Court in Punjab National Bank v. Indian Bank and Anr. 2003(1) PLJ 458. Learned Counsel relied upon the following observations in the judgment:

(3.) On the other hand, learned Counsel for the respondent-plaintiff contends that the trial Court has rightly granted the amendment as it is necessary to determine the real controversy in dispute between the parties. He further states that amendment can be allowed under Order VI Rule 17 CPC where further cause of action arises during the pendency of the suit and the basic structure of the suit does not change. He relied upon a recent judgment of the Hon'ble Supreme Court in Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. 2006(2) RCR (Civil) 577. The observations of the said judgment relied upon are as hereunder: